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Long the stuff of legend, filibuster might be in danger in Senate

By William Douglas

McClatchy Washington Bureau

WASHINGTON, D.C. — It’s been romanticized in classic film, gone viral on social media and become must-see TV.

Jimmy Stewart stood all night in the Senate chamber against the wicked ways of Washington as the elected innocent in 1939’s “Mr. Smith Goes to Washington.” Texas Democratic state Sen. Wendy Davis, running shoes and all, staged an 11-hour talk-a-thon last week against a state abortion measure and became an Internet sensation. Sen. Rand Paul, R-Ky., enthralled C-SPAN viewers in March with a nearly 13-hour filibuster to protest any potential use of drones against U.S. citizens on U.S. soil.

Arcane but often effective, the filibuster is hot these days. But is it any way to run a government? The battle over the use — or abuse — of the filibuster in the U.S. Senate may come to a head this month as Senate Majority Leader Harry Reid, D-Nev., mulls changing the chamber’s rules to prevent Republicans from using the procedure to block President Barack Obama’s judicial and administration nominees.

How the chamber handles a spate of nominations this month may dictate whether Reid pursues the so-called “nuclear option” to allow the Democratic-controlled chamber to confirm nominees with a simple majority. Democrats have 54 votes out of 100 in the Senate, plus the steady support of two independents.

Odds are that the filibuster will remain intact. Democratic senators know they could soon be in the minority and need the protection of the filibuster. Reid himself didn’t like the idea when then-Senate Majority Leader Bill Frist, R-Tenn., toyed with the nuclear option in 2006.

“A filibuster is the minority’s way of not allowing the majority to shut off debate, and without robust debate, the Senate is crippled,” Reid wrote in his book “The Good Fight: Hard Lessons from Searchlight to Washington.”

Still, Reid might try.

“The Senate is broken and it’s breeding cynicism across America, and we need to do much better,” said Sen. Jeff Merkley of Oregon, one of a handful of Senate Democrats who’ve been agitating for significant changes in filibuster rules. “There are a lot of nominations that are in the pipeline to be considered after the immigration bill. If there is extensive obstruction of the process in considering those nominations, I think that will fuel a major debate.”

Several of Obama’s top nominations still are pending in the Senate, including those to head the Environmental Protection Agency, the Department of Labor and the Consumer Financial Protection Bureau. Also, the nominations of three judges for the U.S. District Court of Appeals for the District of Columbia are in the early stages of the confirmation process.

Republicans accuse Democrats of trying to manufacture a filibuster crisis as an excuse to go nuclear. They say Obama’s Cabinet nominees have been confirmed or are in the process of getting there, and that only a handful of judicial nominations are awaiting confirmation by the full Senate.

“The president’s been treated very fairly on both his judicial nominees and his executive branch nominees,” said Senate Minority Leader Mitch McConnell, R-Ky. “And we intend to continue to treat them fairly.”

Overall, there are 100 vacancies at the circuit and district court level, 33 with nominees, according to the Alliance for Justice, a group that tracks judicial nominations. Of the 33 nominees, 22 are awaiting Senate Judiciary Committee hearings, six have had committee hearings and five are awaiting Senate floor confirmation.

A study released Tuesday by New York University’s Brennan Center for Justice blames both Obama and the Senate for the high number of federal bench vacancies. The report says Obama “trailed his predecessors with respect to the number of judges nominated during his first three years in office.”

It also notes that the president’s district court nominees “faced record wait times from nomination to confirmation in the Senate compared to other recent administrations.”

Still, Republicans say the Senate rules work just fine, and they argue that Democrats used filibusters with maddening effectiveness when George W. Bush was president and they were the minority party. Some Republican senators warn their Democratic colleagues who are eager to curtail filibusters to be careful what they wish for.

“If a freight trains starts running through the Senate like it can run through the House, a majority can do anything it wants,” said Sen. Lamar Alexander, R-Tenn.

“The freight train might one day be the Tea Party Express. And all of the liberal Democrats who are calling to get rid of the filibuster might suddenly change their minds because they might find everything from ANWR (oil) drilling to repealing Obamacare easy to do.”

Democrats admit that they aggressively used the filibuster when Republicans ruled the Senate. They waged a 29-month filibuster on circuit court nominee Miguel Estrada until his nomination was withdrawn, and they used or threaten to use filibusters to slow or stymie measures that affected a host of issues, including campaign finance, abortion, war spending and the USA Patriot Act.

But Democrats and several political analysts claim that Republicans have taken the filibuster to new levels. They cite the delayed confirmation of Republican former Nebraska Sen. Chuck Hagel as defense secretary; the filibuster threat against Caitlin Halligan, Obama’s 2010 nominee for the D.C. Circuit Court who withdrew from consideration last March; and the filibuster against Richard Cordray, who was first nominated to the consumer bureau in 2011.

When it comes to judicial nominees, Obama is the only president among the last five to have the median and average wait time from nomination to confirmation for circuit and district court nominees exceed 182 days — half a calendar year — during his first term, according to a May report by the nonpartisan Congressional Research Service.

“What was used under Bush has been ratcheted up, and not just for judicial nominations. That’s one thing,” said Norman Ornstein, a political analyst for the center-right American Enterprise Institute, a research center. “Doing it in the fifth year of a newly elected president who won by a majority, that’s another.”